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HomeMy WebLinkAbout2022-04-21 Leeward Exh D (Item 3&4 Hawaii One1 PL-REZ-2021-014&PL-SMA-2022-012) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT APRIL 21, 2022 A regularly advertised hearing on the applications of HAWAII ONE1 INVESTORS LLC (FORMERLY KONA HEIGHTS LLC) (PL-REZ-2022-000014/AMEND REZ 07-075 AND PL-SMA-2022-000012/AMEND SMA 07-024)was called to order at 12:48 p.m. via live stream online meeting, with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Barbara DeFranco, Michael Dela Cruz, Clement"CJ" Kanuha III, Zaheva Knowles, and Mahina Paishon-Duarte ABSENT AND EXCUSED: Faith"Faye" Yates EX-OFFICIO MEMBER: Robyn Matsumoto (Department of Public Works) ALSO IN ATTENDANCE: Malia Kekai, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Zendo Kern (Planning Director), Maija Jackson (Planning Program Manager), Christian Kay (Planner), Tracie-Lee Camero (Planner), Jessica Andrews (Planner), and Noriko Sauer (Commission Secretary) APPLICANT: HAWAII ONEI INVESTORS LLC (FORMERLY KONA HEIGHTS LLC) (PL-REZ-2022-000014/AMEND REZ 07-075) Application for a five (5)-year time extension to Condition E(Time to Secure Final Subdivision Approval) and amendment to Condition K(Drainage Improvements)to allow for the option of bonding the drainage improvements or the use of other acceptable forms of surety in lieu of the construction of drainage improvements,prior to the issuance of Final Subdivision Approval, of Ordinance 09 8, which reclassified 11.05 acres of land from an Agricultural 5-acres (A-5a) to a Single-Family Residential-7,500 square feet(RS-7.5) zoned district. The property is located at the south end of Naniloa Street adjacent to the White Sands Beach Estates and Keauhou View Estates Subdivisions, Pahoehoe 1st, Kapala`alaea 2nd, North Kona, Hawaii, TMK: 7-7-008:121. APPLICANT: HAWAII ONEI INVESTORS LLC (FORMERLY KONA HEIGHTS LLC) (PL-SMA-2022-000012/AMEND SMA 07-024) Application for a five (5)-year time extension to Condition 4 (Time to Secure Final Subdivision Approval) of SMA Use Permit No. 07-024, which was approved to allow the development of a 65-lot, single family residential subdivision and related improvements. The property is located at the south end of Naniloa Street adjacent to the White Sands Beach Estates and Keauhou View Estates Subdivisions, Pahoehoe 1st, Kapala`alaea 2nd, North Kona, Hawaii, TMK: 7-7-008:121. VITOUSEK: We will take the next two agenda items together for purposes of presentations and fact finding. The items 2 and 3, applicant is Hawaii Onel Investors LLCor, is it Hawaii One [pronouncing phonetically as "o-ne'J1? Anybody? 1 EXHIBIT D ARAI: Hi, this is Daryn. We go with Hawaii One, make it simple. VITOUSEK: Just the way you want, okay, Hawaii One Investors LLC, formerly Kona Heights LLC, PL-REZ-2022-000014/AMEND REZ 07-075, application for a five-year time extension to Condition E, time to secure Final Subdivision Approval, and amendment to Condition K, drainage improvements, to allow for the option of bonding the drainage improvements or the use of other acceptable forms of surety in lieu of the construction of drainage improvements,prior to the issuance of Final Subdivision Approval, of Ordinance 09 8, which reclassified 11.05 acres of land from Agricultural 5-acres, A-5a, to Single-Family Residential-7,500 square feet, RS-7.5, zoned district. The property is located at the south end of Naniloa Street adjacent to the White Sands Beach Estates and Keauhou View Estates Subdivisions, Pahoehoe 1, Kapala`alaea 2nd, North Kona, Hawaii, TMK: 7-7-008:parcel 121. Then item number 3, it's the same applicant, Hawaii One Investors, and this is PL-SMA-2022- 000012/AMEND SMA 07-024, application for a five-year time extension to Condition 4, time to secure Final Plan [sic] Approval, of SMA Use Permit 07-024, which was approved to allow the development of a 65-lot, single-family residential subdivision and related improvements. The property is located at the south end of Naniloa Street adjacent to the White Sands Beach Estates and Keauhou View Estates Subdivisions, Pahoehoe 1st, Kapala`alaea 2nd, North Kona, Hawaii, TMK: 7-7-008:parcel 121. Fist, I'd ask, am I pronouncing that right, the ahupua`a? CJ or Mahina, do you guys know if I'm pronouncing that right? Kapala`alaea? Kapa-la`a-laea? KANUHA: aea, sorry VITOUSEK: Okay. KANUHA: Yeah, yeah, la`alaea, yeah. VITOUSEK: Laea? Mahalo. Staff presentation will be by Christian, right? KAY: Yes. Good afternoon. Thank you, Chair Vitousek, and now welcome to our new Commissioners. If you give me a moment, I'll share my screen. All right, can everybody see that? Great. Okay, as the Chair stated, for presentation purposes we are going to present both of these requests concurrently. Again, these are amendment requests to a Change of Zone ordinance, as well as an amendment to an SMA Use Permit. The subject property outlined here in red is located in the North Kona District of Hawaii Island. For reference we've got Alii Drive running generally north-south through the slide, and Queen Kalama Avenue running generally east-west here, and La`aloa a little bit farther north running generally east-west through the slide as well. 2 EXHIBIT D The applicant is requesting two amendments to ordinance 09 8, which reclassified 11.05 acres of land from an Agricultural 5-acres to a Single-Family Residential 7,500-square feet zoned district. The first is a five-year time extension to Condition E, time to secure Final Subdivision Approval, and an amendment to Condition K, drainage improvements, to allow for the option of bonding the drainage improvements or the use of other acceptable forms of surety in lieu of the construction of drainage improvements prior to the issuance of Final Subdivision Approval. The applicant proposes the following language: "A drainage study shall be prepared by a licensed civil engineer and submitted to the Department of Public Works. The recommended drainage improvement shall be constructed"—and this is the proposed additional language—"or secured by a bond or other acceptable forms of surety meeting with the approval of the Department of Public Works prior to receipt of Final Subdivision Approval. The drainage shall include potential impacts from the Kahului-Keauhou Parkway culverts." The applicant is also requesting a five-year time extension to Condition number 4 of the SMA Use Permit, and it's a similar condition for, to secure Final Subdivision Approval. The SMA Use Permit 07-024 allowed the development of a 65-lot single-family residential subdivision and related improvements on the subject property. The proposed development at the time, and as largely carried through, is a development of a 62-lot residential subdivision, with lots ranging in size from 3,082 square feet to 6,501 square feet and related improvements consistent with an approved Planned Unit Development master plan. All proposed structures will be limited to one to two stories in height. According to the PUD permit, which was approved in 2016, the PUD is designed to address the needs and lifestyle of residents who want to live in a planned residential community that is a more compact community with alternate standards versus the current standard subdivision layout, which in many cases lacks a human scale and walkability. The applicant's stated reasons for the request are as follows: Since the applicant acquired the property in 2013so, about seven years after the ordinance, pardon me, about four years after the ordinance was approved they have worked diligently to comply with conditions of approval of the Change of Zone ordinance. These include securing a Planned Unit Development permit in 2016; finalizing and securing approval from SHPD for an archaeological data recovery plan and burial treatment plan in 2017,pardon me, in 2010 and 2017, respectively; securing tentative approval for phase one of the subdivision in 2017; working with the Department of Parks and Recreation to locate a suitable site for a three-acre neighborhood park, and completing an environmental assessment, receiving a finding of no significant impact for the park's development; and securing approval for subdivision infrastructure construction plans in 2019. Despite this work, the applicant lost its funding to complete the subdivision and could not find an alternative source within a timely manner, thus the applicant could not meet the February 9, 2019, deadline to secure Final Subdivision Approval, which necessitates the time extension request. Additionally, the applicant would like to secure a bond or other form of surety for all subdivision related infrastructure improvements, including drainage improvements, as allowed for by the Subdivision Code. To do this, they are requesting an amendment to Condition K to allow for this flexibility. 3 EXHIBIT D This is the County zoning map for the subject property and surrounding area. The subject property is zoned Single-Family Residential 7,500-square feet as is indicated by the yellow color. Again, the subject property is outlined here in red. And I've got kind of in this dash blue line here the alignment of a 50-foot-wide access easement that will contain a 20-foot-wide pavement roadway with curb gutter sidewalk from Alii Drive to the subject property as one of two access points to the property. That approval was secured through an SMA Minor Permit in 2018, and we can discuss that further later; I just wanted to indicate why that's there. The State Land Use designation for the subject property is Urban. So concurrent with the 2009 rezone ordinance there was a State Land Use boundary amendment from Agricultural to Urban at the time. Other areas in the surrounding vicinity are largely Urban with some Agricultural State Land Use designation as well. The General Plan Land Use Pattern Allocation Guide Map designation for the subject property and much of the surrounding area towards the shoreline is Low Density Urban indicated in the mustard yellow color. The area to the east, or mauka, of the subject property is designated as Urban Expansion as designated by the thatching color. And this is the Kona Community Development Plan map for the subject property and the area. The red lines here on either side of the property indicate the extent of the Kona Urban Area, so the subject property is designated within the Kona Urban Area. A portion of the property is also designated on the fringe, within the fringe of the Kahalu`u Makai Village Neighborhood Transit Oriented Development area. And here is the applicant's site plan. This is going to be one of two site plans here. The first is just showing that roadway I talked about earlier. Again, there is a designated 50-foot-wide easement here within which a 20-foot-wide pavement dedicable standard road will be built and dedicated to the County. There was some question earlier in the testimony relative to the breaching of the Kuakini Wall; there were approvals back in 2019 from SHPD for both the preservation plan, as well as an archaeological monitoring plan, that spoke to that breach and approved the breach as part of the proposed development of the roadway in response to grading plans for the roadway, or for the right-of-way. Again, so this is just leading from Alii Drive here on the left through the intervening property to the west of the subject property, subject property being here on the right. And then here is the applicant's site plan for the subject property here. Again, this is the phase one subdivision plan, so those parcels that you see that have a square footage indication would be part of that phase one, but they generally laid out the remainder of the proposed subdivision, the subsequent phases. Again, it's consistent with the approved Planned Unit Development plan. For reference we've got Naniloa Street here toward the top; this is also a County roadway, so a secondary access in addition to the one coming off of Alii will come through Naniloa and create a loop of connectivity. Other roadways within the subject property will be partially dedicable, partially private. There are conditions of approval of the ordinance that does not allow connectivity to the Kahului-Keauhou Parkway, so the subject property, or the proposed roadway, will cul-de-sac out here unless connectivity to the Kahului-Keauhou Parkway is approved by DPW. Just for reference, there are two archaeological sites that had treatment through a 4 EXHIBIT D preservation plan, a burial site here and another site here, which is part of a larger complex, but the portion of it, or the feature of it, that's on the subject property is located here. And there have been approved, a burial treatment plan approved by the Burial Council and a preservation plan, burial site component of a preservation plan that was approved by SHPD thereafter to protect and mitigate those resources. The aerial photograph here on the upper left kind of shows a zoomed-out view of the subject parcel and surrounding area. We've got the White Sands Subdivision and Keauhou, pardon me, Keauhou View Estates Subdivision here above the subject property to the north, again, Queen Kalama coming here and La`aloa Drive coming here. On the lower right is a zoomed-in view of the subject property, again, with Queen Kalama Street coming off of Alii Drive. Subject property is shown here again outlined in red, and then againI didn't get a chance to put the dash line in here but—there will be a secondary access roadway from Alii Drive to the subject property generally through the parcel here. Here are some photos of the subject property. These shows views of the subject property from Naniloa Street looking south into the property. And here are some views of Naniloa Street farther out looking south, and then the one on the right is a view of Naniloa Street looking north. So this, again, will be one of two access points to the subject property and then the project. The Director is recommending that we forward a favorable recommendation to the County Council for the two amendments to Ordinance number 09 8, and that we approve, or that the Commission approve, the request to amend SMA Use Permit number 07-024. One other thing I'd like to point out is there was some question as to the location of the subject property relative to the Kahalu`u Historic District. Because we got a lot of testimony about that, we did some research into the information that we have for that. So the image on the left here and the description on the bottom comes from the nomination form for the National Register for this historic district that was completed in I believe the late '70s. So what the form does is it gives a written description of the extent of the historic district, as well as some coordinates for the corners and the TMKs that are included, or that are part of the district. So in this case the description reads as such, "The Kahalu`u Historical District encompasses the seaward half of the Kahalu`u ahupua`a(an ancient Hawaiian land division) and a small portion of the Keauhou ahupua`a,"which is to its south. In 2016 when our Cultural Resources Commission was seated, one of the projects that we did was to better understand our sites and districts on the State and National Registers, so we did a GIS mapping exercise to show the extent of those districts. So the image on the right comes from that exercise; the red dots that you see here are the coordinates points overlaid on our GIS, the area in purple are the TMKs that were included in the nomination form. So in both cases what this shows is the subject property, which is located here is outside of the extent of the Kahalu`u Historic District, and again it's in a different ahupua`a. So with that, I'm happy to turn the time over to the Chair and will be happy to answer any questions when it becomes my time. 5 EXHIBIT D VITOUSEK: Thank you. Next, we have the applicant's presentation. And on behalf of the applicant, we have Mr. Daryn Arai. ARAI: Hi, good afternoon, Mr. Chairman and Member of the Commission and Planning Director Kern and staff. Thank you for accommodating us today. VITOUSEK: Mr. Arai, do you mind if I swear you in first? ARAI: Yeah, sure. VITOUSEK: Thanks. Do you—would you please raise your right hand? Okay. Do you swear or affirm or tell the truth on the matter before the Leeward Planning Commission? ARAI: I do. VITOUSEK: Mahalo. Have you received the background and recommendation reports from the Planning Department? ARAI: Yes, we have. VIOTUSEK: And do you agree with the Planning Director's recommendations, including proposed conditions? ARAI: Yes, we do, thank you. VITOUSEK: Okay, and is it just you representing the developer today? ARAI: No,joining me today is representatives of Hawaii Onel Investment; it's Ernie Mansi who is the landowner, Matt Mansi, Project Manager—and they are all hiding from me, by the way, I can't see them here—Ken Van Bergen who is their consultant, and joining me in assisting them with their applications is Sidney Fuke as well. VITOUSEK: Okay, awesome. Would it be possible for all the development team to put on your cameras, and I'll swear everybody in in case anybody has any questions that need to be answered? Okay, if that's everybody, please raise your right hand. Do you swear or affirm to tell the truth on the matter before the Leeward Planning Commission? M. MANSL I do. FUKE: Yeah. VITOUSEK: Mahalo. Okay,please proceed with your presentation. ARAI: Thank you. We appreciate the, by the way, we appreciate the thorough presentation by staff as always. Makes my job and our job a lot easier. We also as I mentioned earlier, we 6 EXHIBIT D appreciate the favorable recommendation by the Planning Director on both the amendment requests. The focus of the amendment request is pretty straightforward, and it's really asking for more time in which to complete the subdivision and more specifically to the Condition K within the Change of Zone ordinances to provide that opportunity where the drainage system improvements can be constructed at the same time with the other subdivision improvements, say, the water, the roads, and the sewer system. The applicant, as staff mentioned, purchased the property in foreclosure in 2013 about four years after the Change of Zone and State Land Use Boundary amendment and SMA permits were issued. In those seven years since the applicant has made very diligent efforts to pursue and complete the subdivision as prescribed by those approvals. And I won't go through it because staff was very thorough in discussing it, but their efforts, as mentioned earlier, did include obtaining a Planned Unit Development permit from the County Planning Department, getting SHPD approvals for both the burial treatment and data recovery plans, designing and then filing a subdivision application in 2017, then also at the same time working with the county in designing and securing the approvals for the proposed three-acre La`aloa Park located to the north of the project site, and that included an environmental assessment and issuance of a finding of no significant impact, applying for Plan Approval for the park as well. And also the subsequent year, the following year I should mention, the applicant also made efforts to purchase the property located to the west or makai of the project site in order to facilitate the construction of the Pi`ilani Street, which will provide direct access to the subdivision from Alii Drive. The applicant was successful in securing tentative subdivision approval for the first phase, which consists of 18 single-family residential lots and went through great effort to design all of the subdivision improvements, the civil work, for which they were able to get the County approval in 2019. Even though you may not see a lot of activity on the ground, I think the applicant in the presentation and as I've discussed has clearly demonstrated a significant amount of efforts in getting the necessary approvals and permits in order to secure final subjection approval. Unfortunately, at the end of 2019 they informed the Planning Department that they lost funding, and that's when basically everything came to a stop. In order for them to seek out additional sources of funding to complete the subdivision, they need and require these amendments to the entitlements both the Change of Zone and the SMA permits in order for them to go ahead and try to find those alternate sources of funding. As confirmed by the Planning Director in his recommendation report, there have been no significant changes in the General Plan or the Zoning Code relative to the project area. It continues to remain consistent with the goals, policies, and standards of the General Plan relative to economic and land use elements of the Plan. The project itself is considered infill by the Kona Community Development Plan, which is intended to really promote urban development within or adjacent to existing developments thereby relieving development pressures on Agricultural or Open designated areas. And finally, the project does, we've demonstrated that project does remain in compliance with the concurrency standards of the Zoning Code relative to water, traffic, and civil defense sirens. 7 EXHIBIT D Now, we've, in testimony that was provided to us by the Planning Department, we—and in testimony today—we heard the concerns of the community, and if you, if it's okay with you, we'd like to briefly touch upon those concerns. VITOUSEK: Yes, please. ARAI: Thank yousorry, I have a frog in my throat, my apologies—as staff pointed out, the project site is not situated within the Kahalu`u Historic District; regardless, though, the applicant has complied with all archaeological protocols and, as I mentioned, complying with the, completing the burial treatment plan and the data recovery plans. The applicant did prepare an updated traffic study that found that the studied intersections in the vicinity of the project will operate at acceptable levels of service, and that recommends that no mitigation for future traffic conditions within the project is warranted at least until 2041. The project will connect to the County sewer as required by the Change of Zone ordinance thereby protecting groundwater resources within the area. We did take a look and the project site is situated within the tsunami evacuation area; however, we believe that with the construction of Pi`ilani Street, it provides another mauka-makai access to eventually get to La`aloa Avenue in order to evacuate the area in the event of a tsunami. Let's see, the Alii Drive access point through the makai parcel will be constructed first, as it will provide the primary and only source of construction related access, you know, during the development of the proposed subdivision. And eventually, when the subdivision, at least the first phase, is completed, that roadway will be fully improved in order to provide or serve as the primary access point for the subdivision thereby relieving some of the traffic strains upon the adjacent Naniloa and Queen Kalama roadways. The applicant, as required by the Change of Zone ordinance, and the recommended amendments to the conditions require the applicant to provide its fair share contributions to roads, parks, sewer, and protective services, including the development of the three acres, the three-acre La`aloa Park to the north. And finally, the applicant will comply with the County's affordable housing requirements. So with that, we hope we've demonstrated the diligence of the applicant in really pursuing Final Subdivision Approval, and he was, they were very, very close to getting it as witnessed by the completion of the construction drawings, and we hope that a favorable recommendation will give the applicant the opportunity to complete the subdivision as intended by the County Council back in 2009. So we stand ready to answer any questions if you have. VITOUSEK: Mahalo. Commissioners, are there any questions of the applicant or staff? Commissioner Paishon-Duarte. 8 EXHIBIT D PAISHON-DUARTE: Thank you. Thank you for the presentation. My, I have a couple questions, so I'll just ask one for now. The first question is, why do you think there were no oral testimonies or written testimonies that I saw in support or in favor of your application? ARAI: I don't know if I can speak directly to that; typically, when people are concerned, they tend to express it more willingly. I wish it was the other, I wish it was a more balanced thing, but I suspect that's the primary reason. PAISHON-DUARTE: Is there anyone else from those that are on your team that would like to answer? You know, we had an applicant with another, another applicant that had, Waikoloa Land Company, and they had a whole bunch of folks that were speaking in favor and also folks that were speaking in opposition, so there have been cases where folks have shared testimony either way. Anyone else want to respond to that question? VAN BERGEN: Yeah, I would just say in these cases—and I'm not sure what the Waikoloa development was you are referring to—if it doesn't affect somebody, they are not going to go out of their way to testify, and there is no, there is not a huge benefit to people in the area to this development, because they already have their residence or their dwelling place and, you know, everyone is busy with their lives. But I would think that that in no way says that this isn't a solid project as shown by the presentation. But I know for myself, I've got several public notices recently and, you know, I didn't go testify because, you know, it wasn't that I was against it, I just, I'm busy, and I thought, you know, my testimony would, you know, wouldn't be that relative because I'm just living my life and living in my, in my residence—excuse me, I've got to, I've got to cough, so I'm a little, a little caught up, but, yeah. ARAI: Maybe I could add something to it is that as part of the public notification process, the applicant did serve notices; I think it was about 81 or 82 property owners within 300 feet of the subject property. So I think maybe you should keep that in context when looking at the number of people who spoke in opposition versus the people that were notified during this process. VIOTUSEK: Any follow-up questions, Commissioner Paishon-Duarte? PAISHON-DUARTE: Commissioner Kanuha, you go first. KANUHA: Yeah, I've got, actually, I have a few questions. VITOUSEK: Go ahead. KANUHA: So, with the archaeological survey, SHPD, obviously, and the historical, it was brought up, you know, the Wall of Kuakini, but also to the burial treatment program being moved through our Burial Council. Have you guys been in touch with any of the cultural descendants or lineal descendants of that area and that property? ARAI: Not as part of this particular amendment request. 9 EXHIBIT D KANUHA: Okay, but, but, but as a whole moving forward not only on this amendment but moving forward on this project, has there been any, you know, any communication between, like I said, the cultural or any lineal descendants there in moving forward to, like I said, with the Burial Council? ARAI: I'm trying to anticipate KANUHA: [Inaudible simultaneous speech] ARAI: Yeah, I'm sorry, go ahead. KANUHA: No, no, the floor is yours. ARAI: Well, because of the nature of the request—again, it's very, very limited in scope, and we've demonstrated how far the applicant has come to within just inches of getting a Final Subdivision Approval before funding was lost. I, and with all due respect, I would be, I'm trying to understand what it would accomplish, you know, given the scope of the request that we have before you today. KANUHA: Yeah, yeah, yes, definitely, and for me,just, I'm looking at a broad spectrum of things. I know the requests and the agenda that's on hand but also the decision that we make here moving it forward. Obviously, I want to make sure everything is, you know, everything is pono on both sides, you know, it's, and that's why these questions are being asked; they are just some notes that I've written down. I thank you for your answer. And I've got a few more questions, but I'm letting some of the Commissioners go ahead of me. VITOUSEK: I just have a quick follow-up on Commissioner Kanuha's question regarding lineal cultural descendants. The burial treatment plan indicates the search for lineal cultural descendants that was done but doesn't indicate whether any lineal cultural descendants were recognized for these sites by the Hawaii Island Burial Council. Were there any lineal and cultural descendants recognized for this project? ARAI: Personally, I am not aware of, if any were specifically identified. And I'm trying to search through some of the records now. FUKE: Mr. Chairman, this is Sydney Fuke. I'm just kind of thinking out loud right now, but, you know, unfortunately, you know, like we don't have the presence of the archaeologist who prepared and represented the applicant before the Burial Council who would be most qualified and adept to answer that question. So if the commi-you know, and I sense that this is a very important question that Commissioner Kanuha had raised, and so, you know, I don't know what the outcome of the application is, but if it happens to be continued, then we will make sure that the archaeologist is here to provide a response [inaudible noise] VITOUSEK: Mahalo, yes. KANUHA: Thank you, Sid 10 EXHIBIT D VITOUSEK: Okay, Commissioners? Mr. Kanuha, if you have any further questions,please by all means let's keep it rolling. KANUHA: Okay, the next follow-up question, so you guys are, you know, moving forward on this other stuff, you guys are able to connect to the County sewer from that location? ARAI: Yes KANUHA: looking at, coming down through the new easement down to Alii Drive? Because I'm pretty sure Kapalama [sic] is the last, I think that's the last stop there. Because, you know, we had something on the agenda previous where, you know, it was a, it was in the paper and there is concern because that sewer connection does not reach, you know, Kahalu`u; we are limited to it. So I know that's something that needs to come down on the, with the County as well and, you know, moving things forward to get that going. But, yes, you guys do have that? ARAI: Yeah, I mean I can't speak to it directly, because I didn't focus on it specifically, as it pertains to the construction drawings that were approved by the County in 2019. But then the conditions of the Change of Zone ordinance specifically require the entire project to be sewer KANUHA: Yes. ARAI: there is no alternative. KANUHA: Yes, okay ARAI: Regardless KANUHA: I see that, I just wanted to make sure you guys had that, that there is, able to get a connection, you know, if there is, the project moves forward and that's something that holds this project up later down the road. ARAI: Totally understand, and if the applicant is not able to provide the sewer connection, then there is no way they can obtain Final Subdivision Approval simply because of the way the ordinance is structured. KANUHA: Yes, yes. Thank you. VITOUSEK: Follow-up question to Commissioner Kanuha's question, and this would be possibly for the County, but, has there been any consideration, given the, the lapse of time that this zoning ordinance and SMA have expired and potential need to recondition it based on current environmental conditions, has there been any consideration about requiring the applicant to extend the sewer to cover the area between Kapalama [sic] and Keauhou that's not currently served by sewer? 11 EXHIBIT D KAY: If I may, Mr. Chair, this is Christian. I don't know specifically what the outcome of the approved waste, or the sewer study, was, but there was an approved sewer study by the Department of Environmental Management that spoke to the capacity issues and what improvements, if any, would need to be done to extend the sewer to the project. We looked at the limited information we had in our GIS this morning, and the last stop of the sewer is within the adjacent subdivision about 300 feet within Queen Kalama Avenue. So I suspect that will have to be extended from its terminus right now into the project. Again, I'm not exactly sure what the route is going to be, but the condition of approval does require them not only to connect the sewer but also to extend the system in order to service the project, subject to the sewer study. VITOUSEK: And I know it's not likely that we would have but maybe, maybe you have the information you could pull up on the map of where the sewer ends currently on either side to see what it would look like, if a condition were recommended for them to connect that to serve the area that's not served by the sewer? KAY: I don't have that—we are in between mapping systems right now, so this is, I don't have the old system on my computer anymore. Maija, I don't know, if Maija can bring that up and share it. JACKSON: I can pull it up if you give me a few minutes, but I just want to clarify one thing; Chair, are you asking whether we had considered having the applicant extend the sewer line to serve properties south of theirs? Because if that's what you are considering, you know, whenever we condition a Change of Zone or a permit, we have to make sure that what we are asking of the applicant is proportional to their impact, so it would be reasonable to ask them to provide a sewer to their property but not necessarily reasonable to have them extend it further south for other properties. VITOUSEK: Well, I mean in other situations there has been projects where roadways have had to go in that serve that project but also serve the surrounding properties and create new roadways going through areas where there wasn't. So if it was an option—and I don't know that it is or not, not knowing any information about where the sewer lines are and how extensive the cost would be just asking if that's something that's been considered. JACKSON: Yeah, so typically, when a road is like a regional roadway and it goes through a property, the landowner will improve it through their property and then stub it out to the property that would connect in the future. So I would think if the current applicant is going to provide sewer to their property, it would extend the sewer line further south into their property, which means that it could connect or stub out to where the next property to the south could connect at some point in the future. Does that make sense? VITOUSEK: Yep, but definitely would be helpful to have figures on what area would be added to the service area for sewer by the creation of the sewer for this project— JACKSON: rojectJACKSON: Yeah, so 12 EXHIBIT D VITOUSEK: because if we are adding additional areas, they can be, now be covered by sewer that weren't covered by sewer; that would be a benefit of this project. JACKSON: Okay, let me pull up a map, and perhaps the applicant has more information on where they intend to install the sewer lines within their project. VAN BERGEN: I might be able to add something if that's okay. VITOUSEK: Sure. VAN BERGEN: Aloha, Chair. And I didn't know this was going to come up, but I was just looking through the civil plans. My recollection—it's been a few years—was we had two options with the sewer; we had an option to have one connection to the property through Naniloa Street, and in that scenario Naniloa would have to put sidewalks, curb, and gutter from Alii Drive up Queen Kalama and then Naniloa into the subdivision, and we would tie into the sewer line serving the White Sands and Keauhou View community. We opted to go with the two entrances to the subdivision for several reasons,just better access points and so forth, so we added the Alii Drive connection. The property owner ended up purchasing those eight acres between the proposed subdivision and Alii Drive. And I believe the sewer plan that was approved tied into the sewer that ended south of the property, so we are going to, we are going to tie in on the Alii Drive connection is my recollection. I was just looking through the civil plan; I couldn't find the page, but I believe that's what, the plan was that Wastewater approved. Matt, do you have any recollection to that scenario? M. MANSL No, I would need to take a look at the improvement plans, which I can do right now while we keep going. VAN BERGEN: But there definitely was a sewer connection plan that was approved by DEM, Wastewater M. MANSL Yes. VAN BERGEN: And that's, you know, I just, I'm trying to recall which one. I know we were going to do the Queen Kalama improvement because it just made more sense to add the second entrance, and I'm fairly confident that's where the sewer is going to tie in. But we can confirm that one way or another. M. MANSL I can, I can confirm that in a few minutes. VITOUSEK: Okay. Deputy Corp. Counsel Campbell has her hand up. CAMPBELL: Hi, thanks. I just want to weigh in just a tiny bit here and say thank you to Maija for beginning to articulate something for you guys. I think it would be helpful for all of you just as again by way of background for you. When you are considering conditions to approvals for basically the kind of things that you are working on, the legal test that you should have in mind is, is this condition rationally related to the impact of this particular approval, and then is it 13 EXHIBIT D roughly proportional, which is what Maija was telling you about. So just by way of an example, if you were doing something that would, you know, and you don't really have approvals that smell exactly like this, but if you were doing something that was going to create an office building, there would be no relationship to a condition relating to a school, so it would be inappropriate to condition an office building approval on, you know, the construction of a school because office buildings don't create the need for more students, right? There might be traffic impacts or density or, you know, all kinds of other things that an office building would create an impact for, but it wouldn't create an impact needing more students. On the other hand if you were doing an approval of a thousand lot subdivision, obviously, that does create a need for, you know, a school because a subdivision like that presumably would create a lot more families, which would create a lot more students, which would create a need for a school. And then, so that's the relationship part; the impact that's created by the actual approval that you are looking at needs to be related to the condition that you are imposing. And then on the proportionality side, again, the subdivision approval if you were doing a four-lot subdivision, it would be inappropriate because it would be, it would not be proportional to ask for the construction of an entire school because presumably four lots doesn't create that much need; a 1,000-lot subdivision by all means, that might make enough students to need a whole new school or at least a large contribution to a school. So, anyway,just wanted to give you by way of background. When you are looking at your conditions, you want to ask yourself: Is the impact created by this approval going to be rationally related to the impact that we are looking at; and is the amount of the thing that we are doing proportional? So,just wanted to offer that up as a background rule for you. VITOUSEK: Thank you. Maija, you have your hand up? JACKSON: Yes, I have that map available, if you would like to see it. VITOUSEK: The sewer map? JACKSON: Yes VITOUSEK: Please. JACKSON: —let me go ahead and share my screen. Can you see this map? This is the subject property where the hand is located. This is Queen Kalama Avenue, Alii Drive, and then Naniloa Street. So there is a sewer line coming down the street to the east, and then it ends right about here in Queen Kalama. So they could extend through here and down into their project or possibly bring this line up through their proposed roadway to the project. VITOUSEK: And where does it end on the south side? JACKSON: Oops, sorry, I'm getting all these alerts. You said where does it end on the south side; it ends right at this point here on Alii Drive. VITOUSEK: Sorry, the other side where there is a gap. Where is the, where is the north side of the gap to the south going down Alii Drive? 14 EXHIBIT D JACKSON: Oh, I see, let me zoom out. I think you may be referring to the private sewer that's in place in Keauhou, and we do not have a map of that. VITOUSEK: Okay. JACKSON: This map just shows the County sewer system. VITOUSEK: Okay. ARAI: Sorry, Maija, this is Daryn. I was wondering if you turned off the road center line, would that show visually where the sewer line is located? Yeah, and then if you zoom in, I think the red lines will show you where the lines are. And I took a quick look at the construction drawings, and even though I'm not an engineer, it does appear from the engineering, civil drawings that the line will come down Pi`ilani Street, which is the new access road that will connect directly with Alii Drive and then connect with the sewer line heading north that's already within Alii Drive. But there is no extension south as currently planned. VAN BERGEN: And that's correct. I said south, and I apologize; I meant north. But if you look at the construction plans, page 29, 30, and 31, it shows the sewer profile, and Daryn is correct; it comes down the newly created Pi`ilani Street, takes a right and heads north and connects to the Alii Drive sewer. That's the plans that were submitted to the County. VITOUSEK: Okay. Director Kern. KERN: Thank you, Mr. Chair. I just wanted to also just quickly follow up; you asked the question on the analysis, and I just wanted to state for the record and tell all the commissioners, everyone who is watching for that matter. When somebody comes in for a time extension, be it a rezoning or an SMA, we don't just look at it as a time extension for that condition; we actually do a full analysis of the entire application, the entire request again, as if it were a brand-new application. We send out to the various departments and agencies for their requests and comments, and anything that may have changed between the original time of those conditions and now that would be necessary, those conditions are then amended. So just wanted to make sure that that was clear to everybody that we do a full analysis on it, not just looking at a time extension, even though that's what the request is really showing. So if there are any questions to that, myself or staff are happy to answer any of those. Thank you. VITOUSEK: Mr. Fuke. FUKE: I've got to unmute myself. Now, I'm just kind of trying to follow up on what, you know, Maija Jackson, as well as your counsel Jean Campbell had raised about, you know, like when you are looking at conditions, you need to address the nexus question, you know, and also the proportionality. So in years past just to provide some background to address this issue the, you know, at the request of the Council the County Planning Department came out with an overall like impact analysis, and based upon that then they arrived at this formula for your fair share contribution, one which would address roadways, wastewater system, solid waste, fire, and police protection, and parks, I'm sorry, so, you know, and that has been kind of like the so-called 15 EXHIBIT D the rational way of assessing, I'm sorry, a proportional way of assessing some of these impacts. So what I was going to suggest is that, you know, like just the previous application, you know, there was this fair share requirement; however, at that time the decision makers felt that the urgent need was not necessarily to divide the fair share contribution into these five categories but instead to focus it on what was most pressing, and in that situation all of the monies were diverted towards the Kaloko-Mamalahoa Highway intersection; so there is no fair share money for parks, solid waste, fire, and police, you know, relative to that application. So what I was going to suggest is that if the wastewater system is a very crucial one relative to how the Commissioners are looking at this, you know, possibly, that same concept can be applied over here such that your entire fair share would be devoted exclusively towards the extension of the sewer line, you know, like we know that the project is already required to, you know, like sewered up, but, you know, if you want to have it extended perhaps all the way down to Kahalu`u Beach Park, you know, like down that area, then you are looking at I was just doing the quick math you know, 15,000 times 62, you are looking at nearly a million dollars of fair share impact that conceivably could be diverted or used exclusively for a wastewater system, provided that the County spends the money, though. VITOUSEK: Yeah, yeah. Thank you, Mr. Fuke, that's very, that's a very helpful suggestion. Mahalo. ARAI: And if I could just add just a little to that. As part of that calculus, the applicant is working, if this time extension is approved, they are looking to develop La`aloa Park, which is also a requirement in the conditions, you know, so the cost of associated with La`aloa Park can be credited to their fair share on the park improvements, and that's in the ordinance. And I should also note that I misspoke earlier, and my apologies, is that because this project is required to hook up to sewer, there is no specific fair share allocation specific to wastewater. VAN BERGEN: And, Chair, can I say VITOUSEK: Commissioner VAN BERGEN: Chair, can I say something? VITOUSEK: Yes. VAN BERGEN: Just to follow up on, you know, Daryn mentioned the park, and I think that's a very important aspect to this project. Just a quick history, the developer originally had a much bigger development in mind, because they owned several acres makai, or, excuse me, mauka of this parcel, and it was going to be a 200-plus project. And at that time the County had put in this Condition C, which said the developer could build a park within, it was a half a mile or so of the project. Well, even though the overall scope of the developer's work has shrunk dramatically to the 62 proposed lots from the 250-plus, they kept the same park requirement. This park on La`aloa is, you know, really, it's really kind of a travesty for the people of Kona in that area. I lived in Alii Heights for 20 years, so I know it very well. You had Keauhou View and Alii Heights come in with 500-plus homes, and Towne Development was supposed to put a 11-acre park in as part of their park fair share, and as a lot of you may know the history, they gave it to 16 EXHIBIT D the YMCA, which, which was good as far as the, you know, the intent, but it never happened. YMCA went, they went bankrupt—excuse me, getting this phone up—and so there was no park. So back in 2015 I think, the County went ahead and subdivided the parcel and took 6.2 acres back, and the Y kept four, and the Y is now developing their four acres, which is great. Well, back in 2019 and 18 when we were working with the County on this project, very closely with Parks, with Director Yee, and Planning Department, you know, the park was a very positive aspect of this because the developer, instead of spending 250,000 in fair share for a park which would be about what it was, they are going to spend anywhere from two to four million on a park. That's very badly needed for this part of town. And so I just think that's a, that's a very generous and a good caveat for this project for community. Now, I know there is folks that are against the growth due to traffic and other things, but the park is needed greatly in that area, and that's a huge, in my opinion, plus for this project because the park scale is so much larger than any fair share would be for a project this size. So I just wanted to throw that out there. VITOUSEK: Commissioner Paishon-Duarte. PAISHON-DUARTE: Thank you. And, yeah, thank you, Mr. Van Bergen. I agree, you know, park space is vitally important for public health. What will be the sale price of each unit when fully developed? M. MANSL I can probably speak to that. Aloha Chair and Commission, my name is Matt Mansi. I'm the developer project manager. When we were getting ready to get a construction loan to build this out a few years ago,we were looking at prices in the 700's. And I suspect that that has changed dramatically since then, but I haven't done a market study yet to determine what that would be. VITOUSEK: You are looking at prices for 700's for the sale of homes within this? M. MANSL Yes, I'm sorry if I misunderstood the question; I thought you were asking about the individual homes that we build. PAISHON-DUARTE: That's correct— M. orrectM. MANSL Okay. VITOUSEK: You hadn't figured out yet if you were selling lots or selling homes at this point, so just to clarify it's going to be a built product looking to get upwards of 700. So this is market stuff. And what is the affordable housing component of this that was mentioned earlier? M. MANSL I asked Daryn about that; I'm not quite sure what's required of us. ARAI: The applicant did satisfy their affordable housing requirements and, through the purchase of—and again, it just needs to be confirmed but through the purchase of housing credits. So from what I understand, those, the requirement has been satisfied. And again, that is, that must be done prior to the issuance of Final Subdivision Approval. 17 EXHIBIT D VITOUSEK: And for the sake of those of us on the Commission who aren't familiar with it, would the County mind explaining the housing credit program and how that can suffice an affordable housing requirement? JACKSON: Chairoh, Malia, do you want to respond to that KEKAL Yeah, I got it, Maij a. JACKSON: you have more information than I do since you are counsel to Housing. KEKAL Yep, got it. JACKSON: Thank you. KEKAL Chair, yeah, Chapter 11 of the Hawaii County Code is the Hawaii affordable, Hawaii County's affordable housing chapter, and basically it states that you have to dedicate 20 percent of your project units to affordable housing. It also basically lays out that if you purchase credits, that you can use those credits for your 20 percent and therefore would not actually have to build the housing yourself, but that money would then be given to, you know, hopefully you are buying it from an affordable housing developer, which would turn that money around into affordable housing is usually the intent of it. But that's the basic way that it works. And those developers usually, the affordable housing developers, because they do more than 20 percent, they earn excess credits, and that's where they fund their projects. So if they did, you know, 80 percent affordable, then they have, basically 60 percent of the earnings are just excess credits that they can turn around and sell to other developers to raise money. VITOUSEK: Commissioner Knowles. KNOWLES: And are those credits, when are those collected? Up front? Before the project sells or after the successful, you know, for example, they build the homes, they sell the homes at market rate, then, then the credits are released? How does that—I'm sorry, I don't unders- I don't know how that works. KEKAL Oh, no, yeah, it's, totally, yeah, so each developer enters into an affordable housing agreement in that that basically isn't released until they satisfy those terms. But it, they have to prove to us that they are also—well, if it's rental or sale, right, we have both rental and sale programs—so if it's sale, for instance, they would have to show that a qualified household making the required income, you know, has to be below basically from 60 percent to 140 of the area median income, and they would have to show us that they sold that house to a qualified buyer, and therefore that would then transfer to, you know, them getting it. But at the end if they don't sell it to qualified buyers, they don't, they wouldn't meet their requirements. PAISHON-DUARTE: Commissioner Knowles, are you done or did you—okay. So, follow-up question, and I'm not sure who this is directed to, I think it's to Mr. Mansi or someone of the development team. So my question, what is the affordable housing development plan? What is 18 EXHIBIT D going to be the plan? Is it going to, are the credits going to be provided to another developer or are you folks intending to develop the affordable housing, and if so, where? M. MANSL Yea, I think I can speak to that, and Daryn, correct me if I'm wrong. But I believe we have already purchased the credits, and we have them in our possession. It's been a few years, but we bought them from another landowner or developer on the island a couple years ago. ARAI: That is correct. I think it was called Westview Developments, and 12 housing credits were purchased in satisfaction of their obligation. FUKE: If I can just add to that, you know, to Commissioner Paishon-Duarte's question, that the simple answer is that, yes, they have fulfilled their affordable housing requirement. I think the question is like whether they would entertain provision of additional affordable housing within the project or elsewhere. I think that's probably the question that you may be asking, and that's something that the developer may have to consider. PAISHON-DUARTE: Follow-up question, are you able to divulge who you are buying the credits from? FUKE: They already purchased the credit, and then they've essentially fulfilled the affordable housing obligation, but it's not unusual for the County, you know, whether the Council, you know, to require or influence additional affordable housing requirements, and largely coming at the request of the, you know, the applicant's consent, yeah. VITOUSEK: I would also point out that they completed the affordable housing component of the expired ordinance, right? So we are not looking at that ordinance; that ordinance is expired. So at this time, as Mr. Fuke said, it's perfectly appropriate to recondition that and request additional affordable housing or additional commitments. FUKE: Don't get me wrong, I don't want to put words in the client's mouth. But I believe that—and this maybe can be confirmed by, you know, your counsel—you know, specifically, I believe that the affordable housing requirement runs with the land, because before the, that requirement can be satisfied, there has to be an agreement between the landowner and the County of Office of Housing to specifically state that this requirement has been, you know, complied with. PAISHON-DUARTE: If I may follow up VITOUSEK: Commissioner Paishon-Duarte. PAISHON-DUARTE: Thank you. Thank you, I have a question, or comment and then a question. So my comment is you, I think, Mr. Mansi, you estimated about 700,000 dollars for sale price; however, it sounds like it needs to be recalculated. So if we were to look, you know, looking at the current census and you look at Hawaii Island median income is at 65,000 dollars, you know, for median household income, so it sounds like the units that would be available for 19 EXHIBIT D purchase, the 62, whether they are all allocated for single-house units, are going to be well beyond the price point for everyday working families. So that's my comment; that's what it sounds like. And then my question is, what assurances do you have in place to finance, properly and adequately finance the project in its totality? M. MANSL Yeah, I don't have, I can't stand before you and say we have assurances for financing, but we do have a lot of interested lenders that we've been talking to that will have issued us term sheets and would fund upon this extension being granted. So take that for what it's worth. PAISHON-DUARTE: Thank you. VITOUSEK: Commissioner Knowles. KNOWLES: Yeah, this is a little bit outside of the realm of the affordable housing discussion, but I did have a question with regard to the, one of the conditions at issue here, which is the drainage and wanting to amend the condition to allow for a bond or a surety, and I just wanted to know, kind of following up on Commissioner Paishon-Duarte's question, what is the likelihood of you getting a successful bond or surety on the drainage piece? I mean, because to me it seems like that's kind of just kicking the can; you'll see if you can get a loan to do it instead of pay for it, pay for the work, the infrastructure work, yourself. So I'm just curious about your confidence with respect to that. ARAI: Well, maybe I'll try to answer. Right now that is a difficult question to answer because there is no confidence, because as it stands right now, the time period to complete the subdivision has lapsed, so any ability to go and talk to find financing companies to get the necessary bonds and sureties to support the construction of the subdivision, is clearly dependent on getting the necessary approvals on the entitlements like the Change of Zone and the SMA permits. The lenders need assurance that this project will go forward before they are willing to even finance it. So it's sort of like a chicken-egg kind of thing, but it's definitely, the time extensions are essential for them to even be able to approach these financing companies and explore the opportunities to get the bonds. And I should note that the drainage improvements are all integral with all the other subdivision related improvements, the roadway systems in particular, because the roadways are a hard surface, they capture the water, they put it into dry wells, and it all gets taken care of in one complete system, and that is why the amendment request; it's difficult to build the drainage system first up front when the other improvements are not being constructed concurrently. I hope that makes some sense. FUKE: Yeah, I'd like to kind of like add to that, Commissioner Knowles, you know, this specifically ties into how property gets subdivided, and the subdivision process requires that before you can sell the land and the property becomes, you know, you can have separate TMK numbers assigned to it, you have to get final subdivision approval, which is issued by the Planning Director. Now, before final approval can be granted, all of the required infrastructure, your roadway, your drainage, your waterline, so on and so forth, they all have to be in place, inspected by the County and said okay fine, and then they'll grant you final approval, and off you go, you know, selling the lot. The code, however, provides that if you provide a bond plus, 20 EXHIBIT D you know, 10 or 20 percent, depending on, you know, like which agency, more than the estimated cost of the improvements, then that satisfies the need to actually fulfill the complete improvements before you can get final approval. But you need to have an agreement between the County and the developer, which would state that, look, I can guarantee that the improvements would be in by X period of time, and that guarantee is through this, through this bond, you know. And so if I fail to, you know, because you are giving me ability to now sell the property, okay, and if I fail to make those improvements, County, you are hereby authorized to use the bond, cash it in and make the improvements, because you have had all of these individual property owners that purchased property with the expectation that the improvements would be in. You know, over and beyond that, while you can get a building permit for property that's been bonded, you know, like you have final approval, you won't be able to get occupancy until all of the improvements are in. So what the, the request right now is just to say that, you know, like the current request is that you already have the ability to bond your roadway system, your waterline, and all of that, why did you exclude drainage? So the request is just to kind of wrap everything together. KNOWLES: Got it. FUKE: Thank you. KAY: Mr. Chair, if I can just take you back on thatChristian, againI did kind of an exhaustive review of the record to determine why that trigger was there prior to Final Subdivision Approval, and the best that I can ascertain is that it's likely that that was just a standard condition of approval that was applied back then; there was nothing in the letter from DPW at the time that had any kind of trigger there, so, and other conditions in the ordinance that allowed for bonding of other roadway improvements. So, that and the allowance for bonding that's within our Subdivision Code led us to recommend, and the Director to recommend, approval of the amendment. Thank you. VITOUSEK: Commissioners, questions? PAISHON-DUARTE: Sorry,just one final question, thank you. And this was, many of the testifiers this morning had mentioned that there is a lack of a tsunami evacuation plan. Is that a requirement for this development or is that—why,why are the testifiers, why did many folks that testified indicate that that was something that we should look at or consider? ARAI: Well, I'll try to answer that. A tsunami evacuation plan, we've seen it before in permits for other types of developments within the Special Management Area, especially when there is a direct concern that property could be affected by, what am I saying, the high, coastal high water, you know, like storm waves along the shoreline, and that's when, you know, that's when some of those plans come in place. But the fact that this property is in an evacuation area, you know, I don't think the applicant would have any objections to including it in the SMA permit to prepare a tsunami evacuation plan as part of this approval. PAISHON-DUARTE: Thank you, Mr. Arai. County? County members, do you have any, anything else to share? 21 EXHIBIT D KERN: I'd like to add, if I may,just on the tsunami evacuation plan. I've been in meetings [indiscernible connection disturbance] VITOUSEK: Zendo, we can't really, Director Kern, we can't hear you very well. Director Kern? KERN: these tsunami evacuation[indiscernible connection disturbance] VITOUSEK: Director Kern, are you there? Director Kern? Director Kern, are you there? We couldn't hear you. It was, it's cutting up, and you are frozen. You look good, though. KERN: [Indiscernible connection disturbance]Is that any better? Is that any better? No? VITOUSEK: Yeah, okay, that seems better KERN: It's not working VITOUSEK: but, you know, we could KERN: gathering up my iPad[indiscernible connection disturbance]now? VITOUSEK: No. KERN: Is that better? Continue, I'll, I'm going to try to reboot. VITOUSEK: Roger. Okay, Commissioners? [None] Okay, let's see, and this is something I would like to have a discussion with the Commissio- Director Kern present. Well, I guess before he can go ahead and reboot and talk about this, has the Cultural Resources Commission had the opportunity to review this project? KAY: No, Mr. Chair, they have not. VITOUSEK: As a, you know, larger project affecting multiple historic properties, and with such a qualified Cultural Resources Commission seated at the County level, I think this would be an ideal candidate for review by the Cultural Resources Commission to provide a recommendation to Planning Department or Planning Commission on the permitting side of it, SMA permit. Is that something the developer would consider? ARAI: Sure, I mean, if the Commission feels compelled that this is—and obviously, it is important—so, yeah, we'll make every effort to present this project before the Cultural Resources Commission. VITOUSEK: And from the County side, is the commission meeting? Are they able to meet? Is it, do they have a quorum? 22 EXHIBIT D JACKSON: Chair Vitousek, yes, I believe they are meeting, and they do have a quorum. I would just ask for,just kind of asking what you would like them to address, because the project has gone through SHPD review, it's gone through Burial Council review. So typically, we send projects to them that haven't gone through that extensive review or have some unique issue that the County needs assistance resolving. So I'm, I'm just wondering what you would like to achieve from the Burial Coun-the, the CRC. VITOUSEK: The commission? Well, I think the question we had, one of the questions we had that was raised by Commissioner Kanuha, was the level of consultation with descendant members of the community in planning the overall construction of this project, and I think the Cultural Resources Commission could be an appropriate location to have that type of discussion on whether descendant access issues are fully resolved in the burial treatment plan, whether additional descendant access and open space requirements should be proposed that would mitigate the impact of this project on the cultural landscape. Some of the things that were mentioned by the testifiers was the impact on the overall cultural landscape, and SHPD may have site-by-site mitigations for each specific site that was identified in the archaeological inventory, but they may not have considered the effect of the overall project on the landscape and how to design that project in a way that minimizes impacts to the historic landscape. And so giving the Cultural Resources Commission the opportunity to review the overall project with SHPD's recommendations and provide their own recommendations on how a project like this can move forward in an area with the historic significance that it is known to have. JACKSON: Okay, I think that's something we can do. Just going forward, is that something that you would like the Department to do for every project that has like burial sites on it that have gone through Burial Council review or VITOUSEK: I would love that, yeah KANUHA: Yeah, it— JACKSON: tJACKSON: —are you suggesting this for projects where there is an older burial treatment plan that's approved or any burial sites? VITOUSEK: I think that, I think that any major project, which I would consider this to be a pretty major project, having impact on cultural resources, whether there is burial treatment plans, whether there is preservation plans, should be reviewed by the Cultural Resources Commission as a step before coming in here. I think that will be a great thing. I think we have that resource with a tremendously capable people on that commission, and I would love to make use of it. JACKSON: Okay, great, thank you. That's something that we can certainly consider. VITOUSEK: Awesome VAN BERGEN: Can I ask a question, Chairman? VITOUSEK: Sure, yes. 23 EXHIBIT D VAN BERGEN: Just for clarity from the developer's side, and I want to speak for the Mansi family for all they gave, but I'm fairly confident that they would agree that, you know, any cultural community type things to work with, we are 100 percent in favor of, we want to make sure that burials both burial sites are very accessible, so if there is any descendants that want to visit the burial sites, as laid out by the SHPD requirements, they are both off, they are both extremely, you know, accessible. But as far asI'm not real familiar with the Cultural Commission you are referring to as far as processes go, and it's this late in the process—would they, are we talking about a possible redesign of the whole PUD layout and all the infrastructure and the way the, because we are looking at a pretty dense subdivision here of 62 lots on 11 acres. There has been hundreds of thousands of dollars spent on infrastructure plans, civil engineering, roadways. So, was there, are we talking about recommendations like a different layout potentially or is it mainly just access issues, making sure that whoever needs to have access has access? I'm just going to be, I'm just going to want a little clarity on what exactly they would be doing for this project. VITOUSEK: Yeah, and, you know, can't really answer that; I can't speak on their behalf on what things they would see as important and then they wouldn't. If I were to be reviewing a project like this, I would be looking at the mitigation measures for the sites and what options can be done. I don't know what they'd be proposing, but I think that giving them the opportunity to consider is a good thing. VAN BERGEN: Thank you. VITOUSEK: Next question would be a larger one about the zoning and the SMA permit having expired. And this is a topic that we have gone over many, many times, but we've got new Planning Commissioners here, and so I think it's an appropriate opportunity to have the discussion about what happens in the instances where we are receiving a request for a time extension on something that has already expired and the deadline to apply for a timed extension has not been met. So in cases where the deadline has expired but the developer has applied for a time extension within the time required to apply for a time extension, you are operating in the normal area of time extension. In this case there is a clear expiration of the zoning ordinance and of the SMA permit, but we are still doing this under a time extension. And so, in the past the discussions we've centered around things like zoning, you know. In this case we've got two different issues, zoning and Special Management Area permit. Zoning is a recommendation to the County Council, so we are making a recommendation on whether they should move forward with it to the County Council. But the SMA permit is a specific permit coming from the Planning Commission, we issue them the permit to proceed, we are the final authority on that permit. And whereas with zoning they may not be in compliance with the conditions of that zoning ordinance, they may not have met the time requirements for it, but that zoning becomes stale, as the Department puts it, and reviving that requires reconditioning it; you don't really reapply for zoning. But with the permit it's expired. Will you again explain why we are extending something that in effect isn't there? JACKSON: Basically, right now our rules for SMA permits are not crystal clear, and so the process has been if a condition of a permit has expired—and I want to make a distinction there, 24 EXHIBIT D it's the condition that's expired or not been met, not the permit that has expired then the practice has been for the applicant to come in and request a time extension. The only alternative to that would be to do something similar to what the Commission did for the project on Alii Drive called Diamond Resorts where they put in deadlines, specific timelines, that need to be met, and if those aren't met, then there is language in the permit that says this permit will be null and void. Right now we don't have any of that language in our rules that says if you don't meet the timeline, the permit is automatically null and void. So it requires some additional action by the Commission in order for that permit to become void. VITOUSEK: So it's because the condition hasn't been met, that conditions expired, not the overall permit? JACKSON: Correct, the permit is still, it's, it's still a valid permit, the condition of the permit has been met, and the permit is still valid until an action is taken to void the permit or revoke the permit. VITOUSEK: Director Kern. KERN: I just wanted to add on, as I mentioned earlier, we still do a full analysis of it, you know, top to bottom. So I feel whether it was, you know, expired all the way or just a condition, time extension for the condition, we are at the same place. I feel like there is a perception that because we are doing a time extension, there is really no analysis done, it's just, I'll just give them more time. And that's not the case; like we do go through the whole process, and if something has changed, we change it. Obviously, you can hear me, right? So, okay, awesome. VITOUSEK: Yeah, we can hear you, yeah. FUKE: If I can add to that, I think that, you know, Mr. Chairman, and that's why if you look at the application, it included a traffic assessment, you know, whereas normally like in just a standard time extension, it wouldn't. And I think also as like the staff kind of pointed out, you have provisions in the Code, the Zoning Code, which expressly states that if you don't exercise the permit, then it's not voidable; it's automatically voided. For example, like Plan Approval, it specifically states that if you don't exercise the Plan Approval, it's void. Now, in the SMA condition, I'm just kind of reading it right now, you have Condition number seven-the new Condition number 17, and which was the existing one, it says that"Should any of the conditions not be met or substantially complied with in a timely fashion, the Planning Director may initiate procedures to revoke the permit." So if, there is a discretion given to the Planning Director, as far as whether he or she is going to initiate a revocation process, and if he initiates the revocation process, it still has to, you know, out of, you know, out of an abundance of caution, you know, for due process, it still has to be vetted and going to the Planning Commission, you know, for action. So if you want to change this to become like automatically void, then, then I guess that's your Commission's prerogative, you know, but the language would have to expressly state that. VITOUSEK: Okay, thank you. My next question is in regards to the, I guess it would be the Hawaii Two2 property located makai of the Hawaii Onel property. So the access to the 25 EXHIBIT D Hawaii Onel property for this development is going through the Hawaii Two2 property, but that's not part of this SMA? Is that correct? ARAI: That's, it's not a part of this SMA. That's correct. VITOUSEK: Why is that? ARAI: Because VAN BERGEN: Because that's added after the fact. I mean we've got an SMA Minor for the road specifically. I think it was back in 2018 or 2019. But it wasn't part of the original 2009 SMA because that parcel wasn't, at that particular time the access was going to be off Naniloa only, and this was added at a later date. KAY: The Change of Zone ordinance gave the landowners options on how to provide for roadway improvements to access the property. They chose option one, which was to extend the roadway from Alii Drive through that intermediary parcel. And so because it met the requirements for a Minor Permit, they came through and permitted it through an SMA Minor Permit process. And that was part of the applicant's exhibits to you showing the Minor Permit for that. So it wasn't wrapped into the SMA Major because it was done after the ordinance in the original Major were approved. VITOUSEK: Obviously, it's all part of the same project. Would it make sense to wrap it into this SMA now? KAY: I don't know why it would because they've already gotten approval for that roadway onto, or across that makai parcel. So they've already, they've already met the requirements for SMA review for that roadway. VITOUSEK: Right, but I mean the thing that I guess I'm struggling with is how a roadway for a major development would be considered SMA Minor. Wouldn't it have a cumulative impact? I mean, would we be analyzing that? I guess that would be, is that, I mean, wouldn't, wouldn't we be thinking that's a cumulative impact that increase from the development that that's serving? ARAI: I jumpoh, sorry. KAY: No, go ahead, Daryn. ARAI: At this point in the game I don't see it as cumulative impact because it was clearly expressed as a mitigating option in the Change of Zone ordinance. It's more of a mitigation action rather than a cumulative action. That's the way I see it. I, and again, because that option was expressed in the Change of Zone ordinance of the current project site. VAN BERGEN: One of the factors with that road was, was that the parties didn't own that parcel; it was owned by John Metzler. And so, that roadway wasn't really an option until the property was acquired in 20- either 2018 or 2019. At first, we negotiated an easement with John, 26 EXHIBIT D but then we ended up acquiring the parcel. But that was never really an option back in 2009, between 2009 and 2018, because there was no control over that land, that parcel,just FYI. ARAI: And, Mr. Chairman, yeah, I can also note that in the abundance of caution, the possibility of Hawaii Two2 being pursued was included in the traffic impact analysis report, and so that was like, sort of like the best case scenario, and even with that, the additionalI think it was possibility of 50 additional units—even with that, the intersections had the sufficient capacity for both projects. But be, again, be aware that it was just something included in the analysis as a as a worst-case scenario. VITOUSEK: All right, I mean, and that's sort of what I'm referring to in terms of cumulative impact is that if you are building a development road, the purpose for building that is to develop the areas that are adjacent to that road, right? ARAI: I mean that would be optimal, sure, if you are building an expensive road. VITOUSEK: That's why you are, that's why you are building the road. Yep, go ahead, Christian. KAY: I would say that if in the event that the Hawaii Two2 property were to come in and try and actualize a development of that property, they would have to go through, well, State Land Use boundary amendment and rezoning, as well as an SMA Major Use Permit process, at that point. Going through the Minor Permit process was an option available to them, given the scope of the roadway project as a standalone connector road. VITOUSEK: Okay. And, oh, last question I guess would be for the developers. I'm just curious; what was the source of financing, and why was it lost, for the project? M. MANSL It was a construction loan and from a bank in California. VITOUSEK: And why was it lost? M. MANSL Well, we ran out of time. We were up against our time extension, or we were up against our permit expiring, or entitlements expiring. VITOUSEK: Okay, so they had the same conditions for completion that we did, but they just walked away when their conditions weren't met. M. MANSL Yeah, we had a number of lenders walk away. Each time we met with a different one and went down the road, and it took months, so we eventually ran out of time. VITOUSEK: Okay, and this time around, what would be different? M. MANSL Well, I'm hopeful that with market conditions the way they are and housing, the demand for housing, that there will be a stronger appetite with lenders. And I've seen that so far in the couple that I've talked to and then I have term sheets from. 27 EXHIBIT D VITOUSEK: I guess the question is not necessarily in terms of the lender's willingness to lend but in terms of the developer's ability to complete the requirements. VAN BERGEN: Can I, can I add to that, Matt? VITOUSEK: Yes. VAN BERGEN: One of the major differences this time around is we have all the County approvals. We were caught, you know, I worked with Jeff and Daryn and, you know, Planning, Public Works, well, I mean we worked for two years on getting on the final parts of this project put together, and that's why we had, you know, Public Works finally approved the plans. But it wasn't until late summer, early fall of 2018. And just we got really short on time. We got hung up in Housing unfortunately—and Malia could talk to us if she is still on, but I don't see her for whatever reason our housing agreement got delayed under Neil's watch for literally 10 and a half months, and it really delayed the final approvals on the process. But the short answer is we had literally two months at the end to get everything finalized, and then we just ran out of time. This time around the process from the County approval standpoint is in place, so accessing finance that, you know, you have a five-year window to get your financing done. It's a, this is a completely different scenario. VITOUSEK: So the clock ran out—and what was actually remaining to be done? Was it, was there any construction component that was remaining to be done before receiving the Final Subdivision Approval? VAN BERGEN: When you say construction component, are you refer-what are you referring to? VITOUSEK: Infrastructure, I mean, is there a requirement to complete roads, drainage, all that stuff? VAN BERGEN: Yes, that's what the financial is for. VITOUSEK: That's for what? VAN BERGEN: That's what the financing was for. VITOUSEK: Right, right, but I mean, you know, you are coming up against this deadline, and you completed this for two years, but if you, you know, don't, you are not going to finish that kind of work in two months. So if you would have started that work, how long would that have taken to get it completed? VAN BERGEN: It's not so much starting the work is we didn't get the, we didn't get the approvals to start work, because we were going through the entitlement process, which included all the ordinance requirements, you know, all A through Z, and the couple that, we got hung up on a couple that really cost us time. One was housing, unfortunately. The other was DPW; we 28 EXHIBIT D had to work through some sight distance issues on the new Pi`ilani Road connection to Alii that took some time to navigate with Engineering. The Park's approval went fairly well, but that was complex; we got a full set of park plans that needed to be approved for Condition C. So, it's just getting to the conditions brought us up to the deadline, and then when we finally got our conditions done, it just, we couldn't hit that February 9, 2019, cutoff, and it expired. So my point is this time around those entitlement processes have been done for the most part, and so we are starting kind of with a fresh timeline, with the approvals kind of behind us, and so it's a little bit, it's quite a different situation than last time. VITOUSEK: I mean it seems like there was a pretty good head of steam going up to that 2019 deadline, with lots of progress being made. Why didn't you apply for the extension when it was still valid? VAN BERGEN: I think we—Matt, why didn't we, Matt? I don't remember. There was a reason. I know that we talked about it, and then M. MANSL Well, I think, I think partly the wind got knocked out of our sails a little bit, and then, you know, economic factors took a hold andI'm not quite sure exactly why, but I think it was a combination of some of those things. VITOUSEK: Economic factors in 2019? What would those be? M. MANSL Well, I'm referring to more, you know, a year later. VITOUSEK: Yeah, but I mean we are talking about 2019 and making progress and no one knew that the pandemic was coming. So in 2019 when you guys are making progress on this, what, what's, why not apply for the extension at that time? M. MANSL Yeah, I can't really answer that, as I don't recall, but I remember definitely the wind getting knocked out of our sales quite a bit. VITOUSEK: Mr. Arai. ARAI: You know, in dealing with the applicants recently I kind of went through some of the records, and as Mr. Van Bergen mentioned, I was somewhat familiar with this project when I was still working, but the way I understand it is that their intentions were always to bond the subdivision improvements as Mr. Fuke mentioned, and that will allow them to get Final Subdivision Approval without actually putting in all the improvements, but the bonding and subdivision agreement will ensure that those improvements get put in like within the short time frame after final is granted; usually it's anywhere between one to two years or so. So that is why it got really compressed for the end of 2019 where everything was being done to try to get to that point where they can execute the subdivision agreement and secure it with a bond, and it got so compressed that it wasn't so much they needed the time to construct it, they needed the time to get the bonding and the subdivision agreement executed. And then when that all fell out because the financing company said you just don't have that much of a window available, then that's when I guess, as Matt said, the winds got knocked out of their sales. 29 EXHIBIT D VIOTUSEK: Are there any examplesI mean, not knowing anything about your company where you successfully completed projects that you can share with us so that we would have confidence in your ability to complete the requirements that are being put on the permit? M. MANSL Yeah, so we are, we are based in California. My family built a home in Kailua- Kona in 2006, and we share time between there and here. But we primarily build in California, and we've built a number of multi-family and single-family projects over the last 15 years probably 500-plus units. So I could, happy to share more of those with you when it's appropriate. If it's appropriate now, I could probably bring up a couple. VITOUSEK: Commissioners, does anybody have any interest in seeing the completion of the company's projects? KNOWLES: Yeah[inaudible simultaneous speech] VITOUSEK: I mean it seems like what we are going towards is, you know, with the agreement for a review by the Cultural Resources Commission; perhaps after at the next meeting you could come together with a little more information on the company and on the projects that you've completed in the past and on your ability to complete this project and present that to the Commission so that the Commission will have confidence in the ability to complete the requirements. M. MANSL Yeah, I'm happy to provide that in our presentation next time VITOUSEK: Terrific, terrific. That would be great KANUHA: Appreciate it. VITOUSEK: —and I think at the next meeting possibly including the archaeological consultant in case there are questions on the mitigation measures specifically, as that was a pretty major topic discussed by the public testifiers. KNOWLES: And, Chair, now that we have Director Kern back on the call, can we get an answer to the tsunami evacuation question before we hop off this VITOUSEK: Yes, absolutely. KERN: Let's hope the Internet holds. You can hear me all right? VITOUSEK: For now. KERN: As I speak, everyone is freezing, but I'll keep talking for a second. So just for your awareness, I've been in a[Indiscernible connection disturbance] ARAI: May I suggest that he turn off his video? 30 EXHIBIT D KANUHA: Yes, turn off your videos, Zendo, then we probably can hear you better. KERN: I'm going toI am going to try my other phone. VITOUSEK: And then, while Zendo is not here, the tsunami evacuation plan would pertain to this development only, correct? ARAI: As we understand it, yes, because that's the matter before you. KERN: Is that any better[echo] VITOUSEK: Yes, but you are going to want to mute one of yourselves. KERN: I get told that frequently. Okay, is that better? VITOUSEK: Yes. KERN: Okay, so we've been in a very comprehensive discussion around a tsunami evacuation. So we just had a meeting I believe about a week and a half ago, Civil Defense, Public Works, Parks and Rec, also the State DOT to go over the tsunami evacuation routes and areas, and this area is addressed with the checkpoints, etcetera, on how they would be handling this. So if the Commission feels like something particular is needed for this subdivision exactly, then you could do that. But I just want to let you guys know that the general area around the island has had a comprehensive look. There is a checkpoint right around the side connection street of this project, and then also in these areas of tsunami evac, there will be Police, DPW, as well as Fire, in these areas notifying people that, you know, tsunami is on its way, etcetera. So I just want to say if there is something, it links up very well to what's already being done in this general area. KNOWLES: Thanks, Zendo. May I, Chair? It sounded like the concern from the testimony this morning was density issues as well to so many people and inadequate kind of ingress and egress with this additional development adding more people, and not necessarily having the sort of roadway infrastructure to handle evacuations. That's what I understood from the testimony. KERN: Sure. Just for your awareness, in our conversations with Civil Defense, etcetera, that didn't necessarily come up. I do think there are some areas that definitely are a bit more of a chokepoint in this area. My feeling is it's not so much, but I think that's also possibly subjective. But again, that didn't come up in any of our actual meetings. We had discussion around this specific area because I talked about moving one of the checkpoints. KNOWLES: Well, maybe we could have a little more information on that and the impact of this project as planned on the ability of existing sort of evacuation. KERN: Sure, we can talk to Civil Defense about that. KNOWLES: It would be helpful, especially with what is going on in Waikoloa now. 31 EXHIBIT D KERN: Sure. VITOUSEK: Okay. Commissioners, would anybody like to make the motion to defer pending review by Cultural Resources Commission? Maija, yes. JACKSON: Thank you, Chair. Just for your information the next meeting of the Cultural Resources Commission is May I Ph, so likely we'd not be able to bring this back to Planning Commission until their June meeting, until your June meeting. VITOUSEK: Okay. Commissioner DeFranco. DEFRANCO: So I'm in, I think we are looking to defer this then, is that right? So we, what we want to do is make a recommendation to defer this? VITOUSEK: Yes. DEFRANCO: —June, so I move that we defer this meeting until the June meeting when we have all of the pieces together that everyone here wants to hear about. And that is the application for Hawaii One Investors LLC, and this has to do with the PL-REZ-2022-14 to amend the rezoning and at the same time VITOUSEK: Oh sorry, I just, specify the language reflecting review by the Cultural Resource Commission. DEFRANCO: Right, the Cultural Resources Commission and, yes, and that the other people that are supposed to be present at the meeting PAISHON-DUARTE: The archaeologist. DEFRANCO: the archaeologist that should be present at the meeting so that we have all, everything here so that we can determine a recommendation. VITOUSEK: Mahalo. PAISHON-DUARTE: Second. VITOUSEK: Okay. Any discussion? Seeing none, we proceed with the vote. KAY: Thank you, Mr. Chair. I just want to confirm the second was from Commissioner Paishon-Duarte? VITOUSEK: Correct. 32 EXHIBIT D KAY: Okay, thank you. All right, so this is on the motion to defer until June Leeward Planning Commission meetingI'm sorry, do I have that correct that we are stating a specific date or after they are able to meet with CRC? VITOUSEK: It's up to the motion maker, but to me it makes sense not to put a specific date on it but to allow them to have the opportunity to review with the CRC. DEFRANCO: Yes, after the opportunity to meet with the CRC. KAY: Until CRC review, okay. Great. So Commissioner, pardon me, Vice Chair DeFranco? DEFRANCO: Aye. KAY: Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. KAY: Commissioner Dela Cruz? DELA CRUZ: Aye. KAY: Commissioner Kanuha? KANUHA: Aye. KAY: Commissioner Knowles? KNOWLES: Aye. KAY: And Chair Vitousek? VITOUSEK: Aye. KAY: Thank you, Mr. Chair, motion carries, six-nothing with one excused. VIOTUSEK: And then we will need a same motion for the next agenda item. Say so moved? PAISHON-DUARTE: So moved. VITOUSEK: Okay, so moved. To restate, motion by Commissioner Paishon-Duarte, the motion is to defer until the Cultural Resource Commission has the opportunity to review the Special Management Area Permit. Second? KNOWLES: Second. KANUHA: Second. 33 EXHIBIT D VIOTUSEK: All right, Commissioner Knowles seconded that one amongst others. KNOWLES: All right. VITOUSEK: On the record. And any discussion? Okay, seeing none, we'll move with the vote. KAY: Thank you, Mr. Chair. Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. KAY: Commissioner Knowles? KNOWLES: Aye. KAY: Vice Chair DeFranco? DEFRANCO: Aye. KAY: Commissioner Dela Cruz? DELA CRUZ: Aye. KAY: Commissioner Kanuha? KANUHA: Aye. KAY: And Chair Vitousek? VITOUSEK: Aye. KAY: Thank you, Mr. Chair, motion carries, six-nothing with one excused. VITOUSEK: Mahalo. Thank you to the applicant. You will be notified of the decision in writing, and we'll see you again. ARAI: Thank you, Commissioners, Director, and staff. Much appreciated. Thank you for your time VITOUSEK: Mahalo. ARAI: take care. VAN BERGEN: Thank you, Chairman. Thank you, Commissioners. Aloha. ARAI: Aloha. 34 EXHIBIT D The hearing ended at 2:42 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 35 EXHIBIT D